Opinion
A149814
08-24-2017
In re Emiliano G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Emiliano G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. JV18084)
Emiliano G., now 16 years old, was declared a ward of the juvenile court and placed on probation after admitting to a misdemeanor count of public intoxication. He then violated the terms of his probation some months later, when he showed up at his high school intoxicated again. Following Emiliano's admitted probation violation, the juvenile court imposed a condition of probation authorizing warrantless searches of his electronic devices. Emiliano now appeals the disposition order, challenging the electronics search condition under People v. Lent (1975) 15 Cal.3d 481 (Lent) and as constitutionally overbroad. We conclude the condition must be stricken, because it does not pass muster under Lent.
FACTUAL AND PROCEDURAL BACKGROUND
Late in the evening on March 28, 2015, Emiliano was arrested for being publicly intoxicated in the City of Napa. At approximately 9:30 p.m. that evening, Napa police responded to a report of several minors consuming alcohol in public. When police arrived at the scene, Emiliano was standing in the middle of the road and greeted police with profanity, denied any illegal activity and then, after consenting to a search, physically resisted and was placed in handcuffs. His eyes were bloodshot, his speech slurred, his breath smelled of alcohol and his gait was unsteady. He initially refused to give police his name, became verbally aggressive, refused to follow police directives and was placed in the police car. Eventually he identified himself to police, who then contacted his mother. When she arrived, Emiliano began cursing and yelling that he wanted to get "locked up," he physically resisted being placed in his mother's car, and police had to physically restrain him. Having determined that Emiliano's mother couldn't safely care for Emiliano, police then transported him to the county juvenile justice center where he was booked.
Emiliano later told his probation officer he regretted the incident, and attributed it to peer pressure. He also reported using alcohol and marijuana regularly since middle school, though he had remained sober for eight months. His mother told the probation department she wasn't surprised by his marijuana and alcohol use, but didn't think the incident was part of a pattern. She attributed it to "negative associations," as well as too much leisure time. She thought her son could benefit from social services intervention, and that she was willing to help him complete any programs that might be ordered by the juvenile court.
Two days after his arrest, on March 30, 2015, Emiliano was released from juvenile hall and placed on six months of informal probation. Emiliano enrolled in, and a year later would graduate from, a juvenile substance abuse program. In the meantime, though, his conduct while on informal probation was unsatisfactory. He struggled academically in school, was disruptive, disrespected his teachers, and on one occasion reported to the probation department under the influence of marijuana and alcohol.
Due to Emiliano's failure to obey the terms of his informal probation, after approximately three months, the Napa County District Attorney, on July 10, 2015, filed a juvenile wardship petition against Emiliano based on the March 30 incident, alleging one count of public intoxication, a misdemeanor (Pen. Code, § 647, subd. (f)). On September 16, 2015, Emiliano admitted the petition, was declared a ward of the court, and was placed on probation to be served while living at his parents' home. He was ordered, among other things, to obey all school rules and refrain from using alcohol. The court was not asked to, and did not, impose an electronics search condition at that juncture. The court also declined to impose gang terms, finding them inappropriate because Emiliano did not appear to have any involvement with a criminal street gang.
Approximately eight months later, on May 27, 2016, Emiliano, then 16 years old, was suspended from high school for being intoxicated, and when he reported to the probation department later that day for drug testing, he clearly appeared to be intoxicated and he then tested positive for alcohol consumption.
The district attorney subsequently filed a probation violation petition, alleging Emiliano had failed to obey school rules by being intoxicated and tested positive for alcohol, and Emiliano admitted the violation.
Until that school incident, Emiliano's probation officer believed Emiliano had been performing well on probation and was working towards a successful dismissal. He had completed 20 hours of community service (four hours more than what was required of him); had graduated from a substance abuse program; and his mother had completed a parenting program too.
Emiliano told his probation officer that he was sorry for the incident at school, that he had " 'messed up,' " and that the incident was " '[d]umb, really [d]umb.' " His mother felt things had been going well too; reported having grounded Emiliano for what he had done; and said she had been keeping close to home, had a "really close" relationship with him and was willing to help him successfully complete probation.
At the dispositional hearing on October 16, 2016, the juvenile court continued Emiliano's wardship and imposed the electronics search condition challenged here, over defense counsel's objections that the search term was unwarranted because it had no connection to Emiliano's offense and impinged significantly on Emiliano's privacy.
The juvenile court gave defense counsel's objections serious consideration, and initially was hesitant to impose the condition. Responding to the district attorney's position the condition was justified by Emiliano's "major incidents with alcohol," the court first commented, "It's not as clear to me or not as imperative to me as it would be to a concern of being in a gang or with illegal drugs. I think alcohol is so readily available by—I'm not sure whether that's not an overbroad term, given the concern about drinking alcohol. I know that of course if you want to drink alcohol you have to get it, and I think, I don't know whether there is a relation between getting alcohol and the use of electronic devices to find it." (Italics added.) The court also observed that in regard to cell phones, "I feel very strongly that gang membership and use of intoxicating drugs requires and almost includes the use of such devices. [¶] I'm not sure if—I can see a minor getting alcohol would require him to find it somewhere." (Italics added.) The court then told the parties, though (with commendable candor), "the thing I'm grappling with is if a minor wants to get alcohol, you have to get it somewhere. You can't just go into a liquor store and get alcohol. So how does he obtain alcohol? Well, one would think he does so by communicating with his friends and asking who knows how to get it, and then meeting with those people in order to obtain it. It seems to me that's the only way a minor can get it. [¶] Because he can't get it—nobody would sell Emiliano alcohol if he went into a liquor store. . . . [¶] You can stand outside the liquor store and importune shoppers, that's true."
Defense counsel again objected, implying the court's concern was speculative. "As someone who was in high school not so long ago before cell phones became all the rage that they are today," he asserted, "I can tell the Court that minors still had access to alcohol prior to the advent of electronic devices. And I believe that we can all come up with a theory by which someone could use their cell phone to commit this crime. But there is no evidence in this case to show that that's how he did it." (Italics added.)
Ultimately, the juvenile court concluded the condition was necessary in order to monitor Emiliano's communications about procuring alcohol. The court explained, "I think for a minor alcohol is as illegal as marijuana, and the need to obtain it is overwhelmingly powerful for Emiliano. So I think it's quite likely that if he needs to obtain alcohol, he does so by contacting others and endeavoring to do so. I find it to be an appropriate condition for use of an intoxicating substance such as alcohol. And so I will impose the condition . . . ."
This timely appeal from the dispositional order followed.
DISCUSSION
The condition imposed by the juvenile court states: "The minor shall submit all electronic devices under their control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer."
On appeal, Emiliano challenges this electronics search condition as unreasonable under People v. Lent, supra, 15 Cal.3d 481, and as unconstitutionally overbroad. We agree the condition must be stricken under Lent, and do not reach the constitutional question.
Much of the legal analysis that follows is taken from a recent unpublished opinion by this court authored by Justice Kline, which we find persuasive.
Conditions of probation are reviewed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) "Generally, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . ." [Citation.]' (Lent, supra, 15 Cal.3d at p. 486.) This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. (Id. at p. 486, fn. 1; see also People v. Balestra (1999) 76 Cal.App.4th 57, 68-69.) As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. (See [People v.] Carbajal [(1995)] 10 Cal.4th [1114,] 1121.)" (Olguin, at pp. 379-380.)
The first two prongs under Lent are clearly met in this case. The Attorney General contends the first prong isn't satisfied, arguing the search condition is related to Emiliano's offense "because it allows his probation officer to monitor his communications for evidence that he has obtained or is planning to obtain alcohol." We disagree. The contention a probation condition is valid because it facilitates effective supervision of a probationer concerns the separate question whether it is reasonably related to future criminality, Lent's third prong (see Olguin, supra, 45 Cal.4th at p. 380.) Here, there is no evidence Emiliano used electronic devices to facilitate either his underlying offense of public intoxication or his probation violation, and so the first Lent prong is satisfied. (See In re Erica R. (2015) 240 Cal.App.4th 907, 912 (Erica R.).) And there is no dispute the second Lent prong is satisfied: Emiliano's use of electronic devices is not in itself criminal.
This brings us to the third criterion under Lent, whether this search condition is reasonably related to future criminality. We are mindful that "[t]the permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults." (In re Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).) " 'The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents' (In re Antonio R. (2000) 78 Cal.App.4th 937, 941 (Antonio R.)), thereby occupying a 'unique role . . . in caring for the minor's well-being.' (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500.) In keeping with this role, section 730, subdivision (b), provides that the court may impose 'any and all reasonable [probation] conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.' " (Victor L., at pp. 909-910.)
" '[E]ven where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults. . . ." ' (Ginsberg v. New York (1968) 390 U.S. 629, 638.) This is because juveniles are deemed to be 'more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed.' (Antonio R., supra, 78 Cal.App.4th at p. 941.) Thus, ' " 'a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court. ' " ' (In re Sheena K. [(2007)] 40 Cal.4th 875, 889 (Sheena K.); see also In re R.V. (2009) 171 Cal.App.4th 239, 247; In re Frank V. (1991) 233 Cal.App.3d 1232, 1242-1243 [rule derives from court's role as parens patriae ].)" (Victor L., supra, 182 Cal.App.4th at p. 910.)
Still, every probation condition must be made to fit the circumstances and the minor. (In re Binh L. (1992) 5 Cal.App.4th 194, 203.) Unlike an adult probationer, a juvenile " ' "cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation." [Citation.] Courts have recognized that a "minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor." ' " (In re J.B. (2015) 242 Cal.App.4th 749, 756 (J.B.), quoting Erica R., supra, 240 Cal.App.4th at p. 914.)
Because of the immense amount of personal information that can be stored on electronic devices, and even greater amounts to be found on internet sites the devices can access, electronic search conditions carry obvious implications for constitutionally protected privacy interests. (See generally Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 2494-2495] (Riley).) The decided cases have reached conflicting conclusions about their reasonableness. The issue is currently pending Supreme Court review.
In re Ricardo P. (2015) 241 Cal.App.4th 676, 681, review granted February 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, 108, review granted February 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, 561, review granted March 9, 2016, S233340; In re Mark C. (2016) 244 Cal.App.4th 520, review granted April 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re J.E. (2016) 1 Cal.App.5th 795, review granted October 12, 2016, S145399; In re Q.R. (2017) 7 Cal.App.5th 1231, review granted April 12, 2017, S240222.
In Erica R., supra, 240 Cal.App.4th at page 910, we considered a probation condition requiring a juvenile who had admitted misdemeanor possession of ecstasy to submit to a search of her "electronics" and provide her passwords to her probation officer. The offense did not involve use of any electronic device, and the minor's attorney represented that the minor did not have a cell phone. (Ibid.) The juvenile court believed the condition was reasonably related to future criminality because it provided a way to keep track of the minor's drug usage, explaining that in its experience, " 'many juveniles, many minors who are involved in drugs tend to post information about themselves and drug usage.' " (Id. at pp. 910, 913.) After finding the first two Lent factors met because the condition had no relationship to the minor's offense and typical use of electronic devices and social media is not criminal, we rejected the juvenile court's justification: " '[B]ecause there is nothing in [Erica's] past or current offenses or [her] personal history that demonstrates a predisposition' to utilize electronic devices or social media in connection with criminal activity, 'there is no reason to believe the current restriction will serve the rehabilitative function of precluding [Erica] from any future criminal acts.' " (Erica R., at pp. 912-913, quoting In re D.G. (2010) 187 Cal.App.4th 47, 53.)
We contrasted the situation in Erica R. with People v. Ebertowski (2014) 228 Cal.App.4th 1170, in which the adult defendant was convicted of making criminal threats to a police officer. There, the condition requiring the defendant to submit his electronic devices to search, with passwords to the devices and social media accounts, was reasonably related to the risk of future criminality because the threats had included references to the defendant's gang membership, he had promoted his gang through his social media account, and his gang membership was related to future criminality in that his " 'association with his gang gave him the bravado to threaten and resist armed police officers.' " (Erica R., supra, 240 Cal.App.4th at pp. 914-915, quoting Ebertowski, at pp. 1173, 1176-1177.)
Division Three of this court reached the same result as Erica R. in the case of a minor who admitted committing a petty theft. (J.B., supra, 242 Cal.App.4th 749.) The electronic search was imposed by the same juvenile court judge as in Erica R., for the same reason. (J.B., at p. 752.) The J.B. court found there was "no showing of any connection between the minor's use of electronic devices and his past or potential future criminal activity" and therefore no reason to believe the condition would serve the purpose of preventing the minor from committing future criminal acts. (Id. at pp. 756-757.)
J.B. disagreed with the reasoning of two of the cases currently pending Supreme Court review, both of which also involved electronics search conditions imposed by the same juvenile court judge as a means to supervise minors for whom there was some indication of illegal drug use in the record. (J.B., supra, 242 Cal.App.4th at p. 757, discussing In re Ricardo P., supra, 241 Cal.App.4th 676, and In re Patrick F., supra, 242 Cal.App.4th 104.) Those cases were based on Olguin, supra, 45 Cal.4th at pages 380-381, which upheld a condition of probation that had no relationship to the defendant's offense but would "enable[ ] a probation officer to supervise his or her charges effectively." The condition in Olguin required the adult defendant to keep his probation officer informed of the presence of pets at his residence. The court explained that this requirement would facilitate unannounced visits to and searches of a probationer's residence, which are part of "proper supervision" of a probationer, by enabling the probation officer to take precautions against possible threats posed by an animal, as well as avoid having a pet create an opportunity for destruction of evidence of unlawful activity by alerting the probationer to the officer's approach. (Id. at p. 382.) " 'By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.' (People v. Robles (2000) 23 Cal.4th 789, 795.) A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality.' " (Id. at pp. 380-381.)
J.B. questioned whether Olguin "justifies a probation condition that facilitates general supervision of a ward's activities if the condition requires or forbids noncriminal conduct bearing no relation to the minor's offense that is not reasonably related to potential future criminality as demonstrated by the minor's history and prior misconduct." (J.B., supra, 242 Cal.App.4th at p. 757.) The court concluded that "such a broad condition cannot be squared with the limitations imposed by Lent, supra, 15 Cal.3d at page 486, and in some cases may exceed constitutional limitations. (See [Sheena K., supra,] 40 Cal.4th [at p.] 890.)" (Ibid.) We agree. " '[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable.' " (Erica R., supra, 240 Cal.App.4th at p. 913, quoting People v. Brandão (2012) 210 Cal.App.4th 568, 574.) "The fact that a search condition would facilitate general oversight of the individual's activities is insufficient to justify an open-ended search condition permitting review of all information contained or accessible on the minor's smart phone or other electronic devices." (J.B., at p. 758.)
Additionally, the Olguin court made a point of explaining that the particular condition at issue—requiring a probationer to keep the probation officer informed of the presence of pets—was both a reasonable means of facilitating the general search condition and reasonable in that it did not impose an undue burden on the probationer. (Olguin, supra, 45 Cal.4th at p. 382.) We do not read Olguin as holding that every condition that could enable a probation officer to supervise a minor more effectively is necessarily "reasonably related to future criminality." (Id. at p. 381.) An electronic search condition that requires a minor to provide access to the wide range of data potentially stored on electronic devices imposes a burden vastly different in nature and extent from what was at issue in Olguin. Unlike the condition in Olguin, which only facilitated a residence search condition the defendant did not challenge, the condition here adds significantly to the scope of the areas subject to warrantless search. As the court observed in Riley, supra, 134 S.Ct. at page 2491, "a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." As with adult probationers, a search condition diminishes but does not altogether foreclose a juvenile probationer's reasonable expectation of privacy. (In re Jaime P. (2006) 40 Cal.4th 128, 136.)
We are aware, of course, that our colleagues in Division One disagree with this point. In re P.O. (2016) 246 Cal.App.4th 288, 295-296, read Olguin as requiring only that the burden imposed by a probation condition on the probationer be reasonable, not that the condition itself be reasonable.
We recognized in Erica R., supra, 240 Cal.App.4th at page 914, that "there can be cases where, based on a defendant's history and circumstances, an electronic search condition bears a reasonable connection to the risk of future criminality." People v. Ebertowski, supra, 228 Cal.App.4th 1170, described above, is one such case, as the defendant's use of his social media account directly related to his criminal offense. In re Malik J. (2015) 240 Cal.App.4th 896, held that an electronic search condition requiring a minor to provide passwords to devices in his custody and control was reasonably related to his offenses, which included a robbery involving an iPhone, as the condition would enable officers to determine the ownership of electronic devices found in his possession. (Id. at p. 902.)
Even where the underlying offense is not directly tied to use of electronic devices, a minor's history and overall circumstances may be such that an electronic search condition is reasonably related to future criminality. But if there is nothing in a minor's current offenses, criminal history or personal circumstances demonstrating a predisposition to use electronic devices in connection with criminal activity, there is no basis for concluding an electronic search condition " 'will serve the rehabilitative function of precluding [the minor] from any future criminal acts.' " (Erica R., supra, 240 Cal.App.4th at p. 913, quoting In re D.G., supra, 187 Cal.App.4th at p. 53.) The condition must be reasonably related to future criminality in that it would be a reasonable means of deterring future crime by this particular minor, based on all the circumstances of this particular case.
In the present case, the trial court concluded the electronics search condition would aid the probation department in determining whether Emiliano was complying with the condition of probation prohibiting him from using or possessing alcohol, because "it's quite likely that if he needs to obtain alcohol, he does so by contacting others and endeavoring to do so" with a cell phone. But the court's supposition that Emiliano "quite likely" procured alcohol by using a cell phone was speculation. Defense counsel perhaps put it best: "we can all come up with a theory by which someone could use their cell phone to commit this crime. But there is no evidence in this case to show that that's how he did it." Just as in Erica R., there was nothing in Emiliano's underlying offense for public intoxication or his probation violation related to the use of electronic devices. Nor was there anything in the history reflected in the probation reports suggesting Emiliano's underlying offense for public intoxication related to electronic devices or use of electronic devices for any unlawful purpose or to facilitate or promote unlawful conduct. Thus, just as in Erica R., this search condition isn't reasonably related to future criminality. (Accord, People v. Bryant (2017) 10 Cal.App.5th 396, 404-406, review granted June 28, 2017, S241937.) Accordingly, it is invalid under Lent and therefore an abuse of the juvenile court's discretion.
The Attorney General, tacitly conceding our decision in Erica R. is closely if not directly on point, does not attempt to distinguish that decision but instead respectfully disagrees with it (and also with J.B., supra, 242 Cal.App.4th 749). Without additional guidance from our Supreme Court, we have no basis to revisit Erica R.
DISPOSITION
The disposition order is modified to strike the probation condition stating that "[t]he minor shall submit all electronic devices under their control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer." In all other respects it is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.